United States v. Yurek

UNITED STATES OF AMERICA, Plaintiff,v.1. DARYL FRANCIS YUREK, Defendant.

ORDER ON INDICTMENT MOTIONS

WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE

This
matter is before the Court on the following motions filed by
Defendant Daryl Yurek, each in various ways challenging the
sufficiency of the Indictment (ECF No. 1): (1) Motion For
Bill of Particulars (ECF No. 105); (2) Motion to Dismiss
Count 1 Re: Duplicity (ECF No. 106); (3) Motion to Dismiss
Counts 2, 3, 4 and 5 of the Indictment Re: Multiplicity (ECF
No. 107); and (4) Motion to Dismiss Count 3 (ECF No. 108).

I.
BACKGROUND

Defendant
Daryl Yurek (“Defendant” or “Mr.
Yurek”) is charged in a Five-Count Indictment. (ECF No.
1.) Count 1 jointly charges both Mr. Yurek and his wife and
co-Defendant Wendy Yurek (“Ms. Yurek”) with a
single count of tax evasion in violation of 26 U.S.C. §
7201. The Indictment recites factual allegations that include
26 specifically enumerated acts on dates between January 16,
2006 and April 2014, as set out in paragraphs 16a.-16z.
(Id. at 5-11.) Some of these acts were allegedly
committed by Mr. Yurek, some were allegedly committed by Ms.
Yurek, and some were allegedly committed by both Mr. and Ms.
Yurek.

Count 2
jointly charges Mr. and Ms. Yurek with a single count of
filing a bankruptcy petition in furtherance of a scheme to
defraud, in violation of 18 U.S.C. § 157(1). The
Indictment on Count 2 incorporates by reference many of the
factual allegations of Count 1.

Count 3
charges Mr. Yurek with one count of making a false statement
under oath in relation to a bankruptcy proceeding, in
violation of 18 U.S.C. § 152(2), based on alleged
conduct at a January 7, 2011 Bankruptcy Rule 2004
examination, which is also an act charged in paragraph 16t.
of Count 1.

Count 4
charges Mr. Yurek with one count of making a false
declaration under penalty of perjury in a tax submission, in
violation of 26 U.S.C. § 7206, based on alleged
declarations made in an IRS Form 433-A (submitting
“Collection Information for Wage Earners”), dated
September 10, 2009.

Count 5
charges Mr. Yurek with a second count of making a false
declaration in violation of 26 U.S.C. § 7206, based on a
separate IRS Form 433-A, dated March 30, 2010.

The purpose of a bill of particulars is to inform the
defendant of the charge against him with sufficient precision
to allow him to prepare his defense. A bill of particulars is
not necessary if the indictment sets forth the elements of
the offense charged and sufficiently apprised the defendant
of the charges to enable him to prepare for trial. The
defendant is not entitled to notice of all of the evidence
the government intends to produce, but only the theory of the
government's case.

United States v. Ivy, 83 F.3d 1266, 1281 (10th Cir.
1996) (emphasis in original) (citations, quotations, and
brackets omitted). The decision whether to require a bill of
particulars is committed to the sound discretion of the
district court. United States v. Levine, 983 F.2d
165, 166 (10th Cir. 1992).

Here,
the Court agrees with the Government that the Indictment
provides sufficient information and particularity, and that a
Bill of Particulars is not required. Defendant makes specific
requests for further particularity as to each of the five
counts, which the Court will address in turn. In sum, the
Court finds that the specificity requested by Defendant goes
beyond that to which he is entitled and/or has already been
adequately provided to him.

A.
Count One

As to
Count One (tax evasion, 26 U.S.C. § 7201), a necessary
element of the charge is for the Government to prove at least
one “affirmative act constituting an evasion or
attempted evasion” of a proven tax liability.
United States v. Boisseau, 841 F.3d 1122, 1125 (10th
Cir. 2016) (citing Sansone v. United States, 380
U.S. 343, 351 (1965)). Defendant first requests specificity
as to whether the Government “intend[s] to present any
evidence at trial” of additional
“affirmative acts” beyond those enumerated in the
26 sub-parts of the Indictment's paragraph 16. (ECF No.
105 at 5, ¶ 1 (emphasis added).) However, Defendant is
not entitled to notice of all the Government's evidence.
Ivy, 83 F.3d at 1281; United States v.
Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983) (“ A
bill of particulars may not be used to compel the Government
to disclose evidentiary details”). On review of the
detailed Indictment here, the Court concludes that it
provides sufficient notice of the Government's theory of
the case and that Defendant's request seeks evidentiary
details to which he is not entitled.

Defendant
also requests information already sufficiently provided by
the Indictment, including what specific statements were
“false and misleading” in the forms submitted to
the IRS. (ECF No. 105 at 5 ¶¶ 2 & 3.) The
Indictment identifies the documents at issue, the dates they
were submitted, and a description of the allegedly misleading
statements as representations of “insufficient assets
and income to pay the full amount” of deficient taxes,
as well as “false and misleading information about
Defendant's employment and investments.” (ECF No. 1
¶¶ 16a.-b.) No further specificity is required on
this point.

Likewise,
Defendant asks for more particularity regarding what
“false and misleading” information was provided
to whom by his September 1, 2010 Bankruptcy Petition. (ECF
No. 105 at 5 ¶ 6.) But the Indictment identifies the
document and its date, and further states that the alleged
misinformation was that found in the Bankruptcy schedules
disclosing Defendant's “assets, transfers of
assets, income, and financial affairs.” (ECF No. 1
¶ 16q.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Beyond
that, discovery and the Government&#39;s response reveal
further specificity of what allegedly false statements were
found in the Bankruptcy filing, including, interalia: failure to disclose specific stock transfers;
failure to disclose specific stock owned by Defendant;
failure to disclose Defendant&#39;s control of his and Ms.
Yurek&#39;s residence, held in their son&#39;s name, as
&ldquo;property owned by another person that the debtor holds
or controls&rdquo;; and failure to list specific personal
expenses paid by the Yureks&#39; business entities with their
disclosed income. (ECF No. 114 at 10.) Reviewed in
combination with the Indictment, the discovery information
described in the Government&#39;s response provides more than
sufficient specificity. See Ivy, 83 F.3d at 1282
(&ldquo;By providing complete discovery containing sufficient
information to allow them to prepare their defense, the
government gave [defendants] the tools necessary to
anticipate and forestall any surprise that might have
resulted from the indictment. Once the government provided
these tools, it was [defendants&#39;] responsibility to use
them in preparing their defense&rdquo;); United States v.
Kunzman, 54 F.3d 1522, 1526 (10th Cir. 1995) (affirming
denial of motion for bill of particulars where the defendant
...

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